Ruling Could Come As Early As Tuesday

TALLAHASSEE, Fla. — Acutely aware it was taking up an issue that, as one justice put it, "is of vital importance to our nation, our state and the world," a seemingly ambivalent Florida Supreme Court grappled Monday with whether the secretary of state properly excluded ballot recounts that could turn the presidential election.

With the election on the line, the seven justices spent more than two hours hammering lawyers with questions and succeeded in exposing the strengths and weaknesses of arguments made by both sides during a session aired nationally by the major broadcast and cable television networks.

The justices' questions and tone revealed an apparent uncertainty about how best to resolve the legal issues, balancing the rights of voters against the deadline dictated by the law and by the real limitations on their authority. A decision could come Tuesday.

The courtroom drama played out as workers in Palm Beach, Broward and Miami-Dade Counties were busy examining and recounting ballots. Gore had gained 169 votes by late Monday, a figure less than Democrats had hoped for this far into the process. The gains cut Bush's lead to 761.

Beyond the legal battles in the state's high court, the contentiousness only grew as other skirmishes surfaced. Notably, amid GOP charges of hypocrisy by Democrats, Florida Atty. Gen. Bob Butterworth sent a letter to the state's 67 counties urging them to reconsider discarding certain overseas ballots, many of which were invalidated for lack of a postmark.

Butterworth, a Gore supporter, also suggested counties get a "clarifying opinion" from Florida Secretary of State Katherine Harris on whether those ballots were legal. His memo, based on a federal election rule, seems to affect only a portion of the overseas ballots.

Elsewhere, in Palm Beach County, a judge ruled against a countywide revote in a lawsuit that attacked the legality of the county's butterfly ballot, and in Broward County, the election supervisor quit, at first raising the prospect of delays, but she was quickly replaced.

At issue before the Florida Supreme Court were the hand recounts in three Florida counties where voters favored Democrat nominee Vice President Al Gore. His lawyers argued Monday that Harris abused her discretion when she decided that she would not accept those recounts because they weren't filed before the seven-day deadline required by Florida law for reporting results after an election. Her move was later upheld by a lower court.

Gore requested the hand counts in hopes of picking up votes that machines may have missed because of partially punched ballots. His lawyers, as well as lawyers for Broward and Palm Beach Counties, argued before the court that the manual recounts were necessary to protect voters' rights. Lawyers for Republicans Harris and Texas Gov. George W. Bush argued that the law clearly set a timetable for reporting results and that the counties simply took too long. They said the court had no business legislating from the bench to set new deadlines.

In the high-ceilinged, cream-colored courtroom, however, several justices seemed troubled by Harris' interpretation of Florida law. Focusing on several state election statutes, the justices struggled with how best to resolve the key question in the case: If the law is interpreted as Harris insists and thus excludes those late manual recounts, would it deprive people of the right to have their votes counted?

That question raises enormous practical concerns for the court, as several justices noted. The justices appeared particularly troubled by real limits on their own authority to set new deadlines or standards, but they also suggested that the state's laws were in conflict.

The jurists appeared keenly aware of approaching deadlines on the federal level. Chief Justice Charles Wells worried that the legal wrangling could take so long that the state might miss the Dec. 12 federal deadline to determine electors, who are scheduled to cast the state's votes in a Dec. 18 Electoral College meeting.

Several justices asked why state law would provide for hand recounts but then set such tight deadlines that it would be all but impossible in some cases for counties to conduct them. Some suggested the deadline was simply impractical. Justice Harry Lee Anstead suggested the result would discriminate against large counties, which couldn't finish their recounts as quickly as smaller counties.

The court also asked how other states handle manual recounts, apparently evaluating whether Florida has an unusually short period of time for reporting results.

That issue was the most difficult one for attorneys on Bush's side. Joseph Klock, the attorney for the secretary of state, insisted that in setting a timetable the Legislature took into account the process of voting, automatic recounts and manual recounts.